Ryan Goodman writes: In his debut on this past weekend’s Sunday morning shows, Stephen Miller, the President’s Senior Policy Advisor, repeated what to some was an alarming statement about the federal judiciary. Defending the White House’s immigration and refugee Executive Order against significant setbacks in federal court including a few days earlier the Appeals Court for the Ninth Circuit, Miller said on Meet the Press:
I also want to be clear we’ve heard a lot of talk about how all the branches of government are equal. That’s the point. They are equal. There’s no such thing as judicial supremacy. What the judges did, both at the ninth and at the district level was to take power for themselves that belongs squarely in the hands of the president of the United States.
I posed the following question to some of the most highly respected constitutional law experts across the country, excluding current members of Just Security’s Board of Editors. I separately sent each person excerpts (see here) of transcripts of Fox News Sunday and Meet the Press, and posed the following query:
Some worry that at some point our country may face a constitutional crisis in which President Trump does not comply with a decision of the Supreme Court, whether in the immigration context or some other case. In view of that concern, how do you view Miller’s statements? You might say, for example, whether you think his views are part of a mainstream school of thought in constitutional law, are potentially limited to the immigration context, or represent a view that would support the President’s disregarding judicial orders from the federal courts or the Supreme Court in particular. Please feel free to address any one of those dimensions or another that you think this issue raises.
Throughout the answers below, the emphasis in the text (in bold) is provided by me, not the author of the statement.
1. Strong Rejection of Miller’s Statements as Expression of Attitude or Ideology
Professor Laurence Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard:
We can try to interrogate what Miller said by recourse to different legal schools of thought and the like, but I want to focus on a different plane and the one in which I believe Miller attempted to register his claim. I am concerned that, well beyond a purely theoretical and ignorant account of the role of an independent judiciary, Miller appears to be channeling President Trump’s underlying attitude, one doubtless not formulated in theoretical terms but baked into his personality and his sense of what it means to be a strong president. In that respect, Miller seemed to be engaged in a performance to earn the praise of his boss. The performance was consistent with the attitude Mr. Trump expressed in disparaging the supposedly “Mexican judge” Curiel back during the campaign, in calling U.S. District Court Judge Robart a “so-called judge,” and in saying the remarkably thoughtful 9th Circuit oral argument was “disgraceful” and “political” when it was as far from either as a judicial exchange dealing with a politically explosive issue could be. It is this gestalt—rather than a well formulated theory of the judiciary’s role—that may someday threaten the foundations of our constitutional democracy if not in this litigation under the Trump administration than in another.